WHERE RACE AND THE LAW MEET
by Brando Simeo Starkey

Friday, September 11, 2009

Brief excerpt of my book

This brief sketch
of how blacks have been treated within the law establishes how often black
legal claims lost to competing societal interests.Professor Derrick Bell calls this phenomenon
the “interest convergence dilemma.”In
short, the principle dictates that, “The interest of blacks in achieving racial
equality will be accommodated only when it converges with the interests of
whites.”[1]This enduring legal posture undoubtedly
impacted black Americans and, more specifically, black culture.Booker T. Washington’s racial uplift strategy
was one such response to the pervasive racism which abounded during the late
nineteenth century.His intellectual
rival, W.E.B. Du Bois, crafted the talented tenth idea, a strategy to help
black Americans achieve economic parity in a country dedicated to ensure it
never materialized.Marcus Garvey
advocated that blacks leave this hostile land, and immigrate to Africa.Black preachers often taught blacks to ignore
the pervasive racism and instead concentrate on the afterlife where they would
be free from the racial subordination they faced in America.While some elite blacks tried to fight racism
by distancing themselves from poorer black in attempt to show themselves as a
member of the “better class.”[2]

This book is
concerned with another such response – the Uncle
Tom dilemma. Constantly beset by
whites who were determined to deny them basic citizenship rights, militant
blacks focused on ensuring racial loyalty.They wanted to prevent any black
person from cooperating with their oppressors at the expense of the race.Many blacks felt beginning around of the turn
of the twentieth century that Jim Crow and racism could not survive unless
blacks were compliant. Compliance could either take the form of lack of
resistance or actively working with those whites committed to white
supremacy.Militant blacks, therefore,
began to be increasingly concerned that fellow race members were betraying the
group by either working with whites to maintain white hegemony or by silently
accepting a second class status which guaranteed it would continue.Some blacks wanted to ensure that no race
members were conniving with the enemy for either personal gain or because they
identified with their white oppressors.

Blacks, relegated
to a subordinate class, needed a myriad of tools to combat their
subjugation.Uncle Tom was one such tool.A necessary but not sufficient condition to improving their plight was
to ensure that two things occurred.First, blacks needed to resist subordination.And second, blacks had to prevent any black
person from doing the bidding of racist whites seeking to maintain the status
quo.Whites could more easily dominate
if blacks either accepted their fate or if some race members betrayed their
community for their own self interest.Much of the progress blacks made in this country can be linked to mass
group mobilization and protest efforts.The Montgomery bus boycott in 1955, for example, headed by Dr. Martin
Luther King was so effective precisely because the entire black population in
the community pulled together.If there
were a critical mass of blacks who chose not to boycott; or if some members
decided to work as double agents, then surely the boycott would have proved
unsuccessful.

If there were many
blacks who were willing to cross the line and betray the group or acquiesce to
their own subordination, then making racial gains would be perpetually unreachable.Indeed, such blacks would prevent the group
cohesiveness vital to mounting a sustained challenge to racial
subordination.It was, therefore,
imperative that blacks clearly demarcated the contours for acceptable
behavior.There needed to be set
parameters for actions and each member needed to know what was and what was not
permitted.In response to a society that
unwaveringly denied blacks equality, militant blacks began to think of themselves
as a group and decided that true race members would resist the shackles of
white supremacy and vow never to work on behalf of racists.

It
is not enough, though, to simply draw a line and demand that fellow race
members not cross it. Blacks needed a
weapon to enforce group loyalty.Indeed,
it was essential to have a device to coerce conformity.This is was the purpose of Uncle Tom.Uncle
Tom developed into the most searing epithet a black person can be
called.The first time I have seen Uncle Tom being used pejoratively was in
1900 by Bishop James Milton Turner.A
decade and a half later, the epithet constantly appeared in militant black
newspapers to scold blacks who supported segregation or those who capitulated
to racism.And no one was
off-limits.The three most influential
blacks in the early twentieth century, Booker T. Washington, W.E.B. Du Bois and
Marcus Garvey all experienced the enduring opprobrium that attends to Uncle Tom.

It is deeply
unlikely that Turner was the first to use Uncle
Tom as an epithet; I fathom that the term was probably bandied about
starting in the previous decade as southern states began enacting more Jim Crow
laws which the Supreme Court declared constitutional in Plessy.That is to say, Uncle Tom was birthed as a response to
the pervasive segregation and the second class citizenship to which the highest
court gave imprimatur.

It is no
coincidence that Uncle Tom’s career
began after Reconstruction, a time where whites began instituting laws and
policies designed to oppress blacks.This was the first of three definable periods of Uncle Tom’s use in this country. And as the legal problems blacks encountered
evolved, so did the use of Uncle Tom.Said differently, one can ascertain how Uncle Tom is used by looking at the state
of the legal system and blacks grievances thereof.

The first period
starts in 1900 and ends in 1959.Uncle Tom was used in various ways.The most common usage was to castigate those
who did not sufficiently resist segregation.It was also used against those who were deemed as placating to white
lynch mobs.Uncle Tom was also used to assail black men in the workforce who
were depicted as being servile towards their white bosses.Black clergymen, too, were constantly the
targets of Uncle Tom accusations
because they were seen as teaching blacks not to fight back against their
oppressors.Additionally, those blacks
associated with Herbert Hoover were branded as Uncle Toms.Hoover, despite
getting a majority of blacks in both of his presidential campaigns, was almost
always antagonistic to black progress.Blacks in Hollywood, as well, suffered the indignity that inevitably
attends Uncle Tom when playing roles
which were considered demeaning to the race.These roles reinforced stereotypes which endorsed racial inferiority a
conclusion which helped sustain laws which kept blacks subordinate.

The second period
is from 1960 to 1975.This epoch begins
with southern states’ defiance in desegregating public schools.Segregated social facilities were still the
norm in the Deep South.Southern
recalcitrance largely propelled the usage of Uncle Tom during this period.There were two main ways in which Uncle
Tom was used, and a few other subsidiary ones.The first was integrationists using Uncle Tom against those blacks who were
not sufficiently anti-segregation, even after Brown.The second was black
militants castigating integrationists for betraying the race for wanting closer
associations with whites who, militants averred, never wanted to radically
remedy their racist past to create an egalitarian future.The militants attacked both those who sought
integration and organizations devoted towards eradicating the remnants of Jim
Crow through the use of interracial coalition politics.Malcolm X is featured prominently during this
period.The second way comprises most of
the Uncle Tom uses during this
epoch.During these years, there was an
increased hostility between the black community and police officers.Blacks thought those entrusted with
protecting and serving the community were racist.In response, police forces began hiring black
officers to serve in black neighborhoods.Those blacks that took such positions, however, were constantly derided
as being an Uncle Tom too.

The third and
final period starts in 1976 and continues to this day.Overt racism is more relic than reality and
the overwhelming majority of Americans agree that racial discrimination towards
blacks is wrong.With federal laws
preventing discrimination, formal racial equality is reality.That does not mean, however, that there is
equality between blacks and whites.Whatever is deemed worth having, blacks generally have less.There is a debate as to what should be done
to help blacks reach equality.This is
the main legal question during this epoch and by appreciating this, one will
understand how Uncle Tom is typically
used.During this period, the epithet is
typically used against those who are considered to be black conservatives.With blacks voting for the Democrats at a least
a 9 to 1 ratio, those blacks who are more sympathetic to the Republican point
of view often find themselves dismissed as sellouts.Also, those blacks who are seen as not
supporting black candidates, too, are often derided as Uncle Toms.Being too connected
with a justice system, which is perceived as being unequal, additionally, makes
one vulnerable to Uncle Tom
accusations.

This book is devoted towards
proving three points.First, we owe the
law to Uncle Tom’s existence.As mentioned, the first usage of Uncle Tom I have unearthed dates back to
1900. It would be highly improbable that
it was the first time Uncle Tom was
used pejoratively.It is likely that Uncle Tom was used in the final years of
the nineteenth century, a period during which segregation was declared
constitutional and the justice system gave silent sanction to lynching.Times like these convinced many blacks,
particularly militants, that group solidarity was a precondition to improving
their plight.It was necessary in order
to change the law, reform legal institutions and elect public officials, who,
with few exceptions, maintained white supremacy.Without racism, codified by law, there is no Uncle Tom.Without laws and judicial interpretation
thereof which subordinated blacks to second class citizenship, blacks would not
have needed an epithet that dissuaded blacks from violating group norms and
acted in a manner which hurt the group’s ability to reach racial equality.

Second, knowing
the various ways the law, the justice system and national, state and local
policymakers have either subjugated blacks or has been unresponsive to blacks
desire for true equality animates the black community’s use of Uncle Tom.After examining how the law affects blacks
during a particular period, one can trace how Uncle Tom is wielded as a weapon in an often inadequate arsenal amassed
to radically reform American society thus making blacks feel as equal
participants in American democracy.

Moreover, as the
laws changed so too did the manner in which blacks used Uncle Tom. Blacks’ issue with the law has changed throughout time
as has the law itself.As the law altered,
so too has the manner in which Uncle Tom
has been used.Uncle Tom often is but a reflection of the legal character of the
times. Being devoted to integration would not have gotten one called an Uncle Tom in 1940.In fact, not fighting for integration at the
time would have been deemed the opposite of what an Uncle Tom connotes.But in
the 1960s, black militants routinely lambasted integrationists as Uncle Toms.The change in the legality of segregation did
not lead to a change in blacks’ socioeconomic status and younger blacks began
to become frustrated with their integrationist leadership.Younger blacks averred that integrationists
were leading them astray and hence they were deemed Uncle Tom.Here, I’m
principally concerned with establishing how the use of Uncle Tom changes to reflect the changes in the law.

Third, I deal with
the position advocated by many that epithets used to mark racial treachery,
particularly Uncle Tom, should be
banned.Although formal equality is
real, equality in results is obviously still yet out of reach.Equality between the races is still proves
elusive.The very reason why Uncle Tom was first employed, to help
realize equality, still exists.I posit,
therefore, that Uncle Tom still has a
place in society.But, as in previous
decades it should be used as a response to the legal challenges blacks
face.More than ever, Uncle Tom is now used as a catch-all
insult against blacks instead of a term that is meant to make a politically and
socially point.Uncle Tom should not be abandoned, but reformed.

Michael Klarman in his scholarship
argues that the law was a symptom of white supremacy.The law, he posits, is usually a reflection
of broader public opinion.The law,
though, was not as influential in the subordination of black people as some
assume.White racists attitudes towards
blacks were the controlling factor in the domination of black people, not the
law.And, according to Klarman even if
the law did not reflect white society’s priorities, blacks still would have
been subjugated through other means.In
short, he maintains that the law was not the central catalyst in black
subordination which could have been accomplished in other ways.

One sympathetic to
this argument, then, might argue that Uncle
Tom is actually a response to white racism, not the law.If, hypothetically speaking, the law
completely embraced black equality, yet blacks would still have been second
class citizens because whites disfranchised them through extra legal means,
then the actual problem was white supremacy.

The problem with
this argument is that in order to maintain their hegemony in a society that
embraced true equality, whites would have had to increase the amount of racial
violence to unimaginable levels to terrorize blacks into subservience.In a society where segregation was illegal,
but still reality because whites were willing to kill scores of blacks to enforce
it, blacks would not have fought for integration.They, instead, would have adopted Black
Nationalism much sooner and stuck to it more strongly.And, if they sought to use Uncle Tom to foster black unity, the
race would have been much more likely to use the 1960’s Black Nationalist
conception of Uncle Tom – as an
assault against those seeking closer relationships with whites.

More important,
though, blacks, in their fight for racial justice had two options: legal or
social protest.Social protests were
largely unavailable to blacks; the cost of retribution was too high.Legal challenges to disfranchisement were the
only reasonably safe way to challenge white supremacy.If blacks began challenging their
subordination through legal means, it is safe to say that Uncle Tom was a response to the law and not directly white
supremacy.

The first chapter in this book is
dedicated towards understanding how Uncle
Tom has been defined.Also, the
first chapter details exactly how the titular hero from Uncle Tom’s Cabin was transmuted into an epithet designed to mark
racial treachery.

The following six
chapters are dedicated to the three different epochs wherein Uncle Tom was used differently:
1900-1959, 1960-1975 and 1976-present.Two chapters are devoted to each of the three epochs.The first chapter details how the epithet was
directed at non-famous blacks while the second chapter is devoted to tracing
how the epithet was used against their renowned peers.The first chapter is split up into smaller
discussions tracing the various racial transgressions Uncle Tom was used to castigate.The second chapter is split up into the various vocations of the
influential blacks who were called an Uncle
Tom during each respective period.

The final chapter
is dedicated towards exploring what exactly black folk should do with Uncle Tom in American society which
obviously does not mirror the American society in which Uncle Tom was spawned.While
not equal by any standard of measure, blacks have made significant gains.Those gains notwithstanding, Uncle Tom should not be abandoned, but
reconfigured to deal with our new reality.